Police Powers of Arrest, Detention, Questioning and Search Flashcards
Police Powers Constituting Deprivations of Liberty and Security: Definitions
Article 5 ECHR: aims to ensure that no one is dispossessed of their liberty in an arbitrary fashion
Article 5(2): Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him
Article 5(3): Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power
What counts as a ‘deprivation of liberty and security’?
Gizzard v Italy (App. No 7367/76, 6 November 1980): Gizzard was arrested for mafia-related activities. Was held in custody and in Italy at the time, the legislation established that there was a mandatory 2-year detention limit for individuals to be held before they were brought to trial. In this case, the 2 years passed, and the police didn’t have enough evidence to convict him, but they also didn’t want to release him so, they placed him on a remote island off Sicily and made him permanent resident there. Guzzardi challenged this on the grounds of Article 5, and this was appealed all the way to the European Court of Human Rights. Italian authorities tried to say that there was to a breach of Article 5 as Gizzard was not being held in a jail cell, for example, and that he had freedom to roam on his island. Court held his appeal was valid as they said the deprivation of liberty in the sense of Article 5 are not just valid when held in a jail but it is determined through certain criteria and the individual facts of the case
R (Gillan) v Commission of Police of the Metropolis [2006] UKHL 12: “I would accept that when a person is stopped and searched, the procedure has the features on which the appellants rely. On the other hand, the procedure will ordinarily be relatively brief. The person stopped will not be arrested, handcuffed, confined or removed to any different place. I do not think, in the absence of special circumstances, such a person should be regarded as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting. There is no deprivation of liberty” per Lord Bingham at [25].
The accused in this case were held for a time of 30 mins.
Lord Bingham ruled in the circumstances that because it was under half an hour (the stop and search), it did not meet the requirements for a deprivation of liberty under Art 5.
Gillan in the above case then appealed their case to the European Court of Human Rights - they challenged this interpretation in the above case
Gillan and Quinton v U.K. (2010) at [57]: “The Court observes that although the length of time during which each applicant was stopped and search did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1”. Eventually in this case however, the ECtHR found the UK in violation of Article 8 ECHR. The European Court disagreed with the HoL. It did engage Art 5 as during the time they were being stopped and searched, they were completely deprived of any freedom of movement – idea of coercion. They also found a violation of Art 8.
What does the requirement of ‘reasonable grounds’ mentioned in Article 5 ECHR entail?
(i) The suspicion must be honestly held (= subjective test). Focuses on the police officer themselves. This is not enough, hence the double test
(ii) This suspicion must be based on objectively reasonable grounds (objective test). The objective test must also be met. It requires that the circumstances of the case mean a fair-minded observer would’ve reached the same conclusion; not just about what the police officer thinks
(iii) Reasonable grounds are considered valid, even if the belief was ultimately mistaken
(iv) It is necessary for the arresting officers themselves to have a reasonable suspicion
Fox, Campbell and Hartley v United Kingdom (1990)
“Reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will, however, depend upon all the circumstances”. Terrorism concerns cannot lead to suspension of ‘reasonableness’ requirement. A case where the reasonable suspicion from the police officer was not enough; the test of the reasonable observer was not fulfilled. The police tried to argue that the severity of the crimes meant that they could dismiss the reasonableness of the grounds - the court disagreed
O’Hara v United Kingdom (2002)
Grounds for arrest can arise from information received from another, even if it subsequently proves to be false, provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion.
European Court of Human Rights
O’Hara was a prominent member of Sinn Fein on the grounds that third parties had claimed that there was reason to believe O’Hara was involved in the planning of terrorist activities. O’Hara challenged this and he appealed all the way up to the European Court of Human Rights. He argued that third party information was insufficient to meet this reasonableness test. The court disagreed - where the court is relevant
Article 6 ECHR
Protection of the right to a fair trial
Rights of individual when deprived of liberty that relate to Article 6 ECHR - four basic rights
(i) right not to be held incommunicado - the right to communicate to someone that you have been arrested
(ii) right of access to a solicitor right to intimation of a solicitor (right to inform a solicitor); also means that you have a right for a solicitor to be present while you are being interrogated by the police, and to discuss the issues and the charges related to your arrest (before the interrogation)
(iii) right to silence and right to non-incrimination
(iv) Trial within a reasonable time
Salduz v Turkey (2009): European Court of Human Rights case where a man was arrested under accusation of unrightfully protest. He was interrogated without a solicitor present, and he argued this was a breach of Article 6. Court agreed with him and agreed with his claim - “In order for the right to a fair trial to remain sufficiently ‘practical and effective’, Article 6 ECHR requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated that there are compelling reasons to restrict this right” at [55]
Cadder v HM Advocate [2010] UKSC 43: In Scotland, a person detained had no right to consult a solicitor, only to have the fact of their detention intimated to a solicitor - Section 14 of the Criminal Proceeding Scotland Act 1995
HCoJ: Declined to follow Salduz and argued that this did not violate Article 6 ECHR
UKSC: Held that it is a breach of Article 6 for the prosecution to rely on evidence obtained during an interview where the suspect had not been afforded an opportunity to consult a solicitor
Similar to the facts within Salduz, Caddar was detained on suspicion of being involved in an attack. Caddar was interrogated without a solicitor and was tried and prosecuted on the facts. Caddar challenged this as a breach of Article 6
How should suspects be questioned?
Chalmers v HMA 1954 JC 66:
(i) Purpose of questioning not to extract a confession
(ii) Questioning which amount to cross-examination will probably be excluded
Codona v HMA (1996) SLT 1100: Suspect statements must be spontaneous and voluntary
(i) Cross-examination is problematic
(ii) Leading or repetitive questioning is likely to lead to exclusion of evidence
BUT
Hartley v HMA (1979) S.L.T. 26:
An accused person aged 17 was convicted of murder by drowning a boy of five. He appealed against conviction on the ground that an alleged confession by him had been improperly admitted in evidence - it had been obtained by means of interrogation amounting to cross-examination, and that in any event the confession was not corroborated
“Cross-examination is just what it means. It consists in questioning an adverse witness in an effort to break down his evidence, to weaken or prejudice his evidence, or to elicit statements damaging to him and aiding the case of the cross-examiner […] The test is the simply and intelligible test which has worked well in practice - has what has taken place been fair or not?” I pause to interject that that, in my understanding, is today in law the basic test and only test. There has been a steady move towards liberalisation so that justice must, of course, be done to the criminal, but equally justice must be done to the interest of the public and law and order”.
The Police and Fire Reform (Scotland) Act 2012: Abolished local police forces and replaced them with a single police service, ‘Police Scotland’, headed by a chief constable. The 2012 act also established a ‘Scottish Police Authority’ “to maintain policing, promote policing principles, and continuous improvement of policing, and to hold the Chief Constable to account”
Arrest without a warrant
Peggie v Clark (1868):
(i) Circumstances must be exceptional
(ii) There must be reasonable grounds to suspect an offence has been committed
(iii) Prompt arrest must be justified by the seriousness of the crime
Criminal Justice (Scotland) Act 2016 s1:
(1) A constable may arrest a person without a warrant if the constable has reasonable grounds for suspecting that the person has committed or is committing an offence
(2) In relation to an offence not punishable by imprisonment, a constable may arrest a person under subsection (1) only if the constable is satisfied that it would not be in the interests of justice to delay the arrest in order to seek a warrant for the person’s arrest
The Terrorism Act 2000 s41:
(1) A constable may arrest without a warrant a person whom he reasonably suspects to be a terrorist
Arrest with a warrant
S34 Criminal Procedure (Scotland) Act 1995: sets out the procedure for a Petition for a warrant
What happens during an arrest?
Criminal Justice (Scotland) Act 2016 s3:
When a constable arrests a person (or as soon afterwards as is reasonably practicable), a constable must inform the person -
(a) that the person is under arrest,
(b) of the general nature of the offence in respect of which the person is arrested,
(c) of the reason for the arrest,
(d) that the person is under no obligation to say anything, (e) of the person’s right to have-
(i) intimation sent to a solicitor under section 43, and
(ii) access to a solicitor under section 44
Criminal Justice (Scotland) Act 2016 s38 Right of Intimation to Another Person
A person in police custody has the right to have intimation sent to another person of
(a) the fact that the person is in custody
(b) the place where the person is in custody
Criminal Justice (Scotland) Act 2016 s43
Right to inform solicitor of the fact and the place that the individual is being detained, as soon as this is practicable
S44: a person who is in police custody has the right to have a private consultation with a solicitor at any time. This can be delayed under specific circumstances
Remember the Cadder case
See also John Murray v United Kingdom (1966): Denial of access to a lawyer for 48 hours where the defence might be irretrievably prejudiced was incompatible with rights of accused
Right to silence/non incrimination
Saunders v United Kingdom (1996):
(i) The right to incriminate oneself lies at the heart of a fair procedure and applies to all types of criminal proceedings. It is primarily concerned with respecting the will of an accused person to remain silent
(ii) The right not to incriminate oneself […] does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect, such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing
Detention
(i) Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities
(ii) The Convention does not recognise grounds for continued detention:
(a) When there is danger of absconding - you would be a flight risk (escaping and therefore, not being present when the trial date came around)
(b) When there is concern the suspect will obstruct proceedings
(c) When there is concern for repetition of offences
(d) Preservation of public order
